Why the 'fix' to Congress's sexual harassment policies could backfire

As allegations of sexual harassment have reached the halls of Capitol Hill, Congress is turning its attention to its own sexual harassment policies, which let lawmakers use government funds to settle harassment complaints in secret. Though the accusations against Rep. John Conyers have made the biggest headlines, Congress’ Office of Compliance has paid out $17 million over the past 20 years in 264 settlements for various infractions, including sexual harassment. House Republicans have introduced a bill to publicize the names of lawmakers who reach any such settlements and to prohibit settlements from using taxpayer money.

The change is pitched as a reform to bring transparency and accountability to a secretive process that lets perpetrators get away with bad behavior. But as a civil rights lawyer whose firm has represented numerous victims of discrimination and harassment, including victims employed by members of Congress, I can assure you that this proposal is dangerous. Whether intentional or not, the bill punishes victims of harassment who would come forward in the future and who have come forward in the past and would make it less likely that victims would come forward to make claims in the future.

The legislation makes two major changes. First, the proposal would retroactively eliminate the confidential nature of settlements that have been made in years past, an effort to expose lawmakers who have acted inappropriately. But this change would hurt the victims as much or more than the lawmakers. The victims often desire that confidentiality because it protects them from the media frenzy that follows when members of Congress are the subject of discrimination and harassment lawsuits. Confidentiality also helps those victims get their next jobs after (hopefully) extricating themselves from the discriminatory harassing environment. The Constitution frowns on retroactive laws such as this because they overrule the expectations and settled legal rights of both parties. My clients expected that these settlements would stay private; in some cases, they wouldn’t have agreed to the settlement if they knew it would eventually become public. It is a breach of trust for Congress to change the rules around the settlement now and force these victims into the public sphere.

Second, and more important, the proposal prohibits taxpayer money from being used to pay settlements or verdicts against members of Congress who discriminate or harass their employees. While that may satisfy a knee-jerk need to hold lawmakers personally responsible for discrimination and harassment, it likely deprives victims of the chance to ever recover the damages to which they are entitled.

Members of Congress rarely have the hundreds of thousands of dollars that are typically paid out in meritorious discrimination and harassment claims. If enacted, the law would effectively require victims to chase lawmakers to their home district to attempt to have local federal or state courts recognize the lawmakers’ liability and then go through byzantine debt collection proceedings, such as attempting to freeze assets and bank accounts and garnish the lawmakers’ wages in order to collect. In many cases the proposed law would leave the victim with an empty and unenforceable judgment or settlement because the Congressperson simply does not—and never will—have the financial means to pay.

Even on a theoretical level, this proposal doesn’t make sense. In law, the concept of respondeat superior holds that the employer is responsible for the actions of its employee when the employee causes harm to others. The concept has been a part of our legal system since its inception, and it can be traced in early Roman and Germanic Law and the English Common Law. We do not sue the fast food cook for the nail in our hamburger, nor do we sue the delivery driver for running us over in the crosswalk. And we certainly do not sue the pilot of the plane that crashes for our lost loved ones. This makes sense on two levels: First the delivery driver, or the airline pilot, or the fast food cook would not be in the position to hurt us unless the employer hired them, trained them (or failed to train them) and gave them the tools or authority that they used to hurt us. Second, the employee is rarely in a position to make the victims whole by paying them damages and otherwise compensating them for the harm done.

In the context of Congress, the American people are responsible for placing lawmakers in the position to discriminate against and harass their victims. A lawmaker would not be harassing his or her staff if we had not elected that person in the first place. Every lawmaker is our employee. Under respondeat superior, we—the public—are responsible for paying any penalties for a lawmaker’s inappropriate behavior. If we do not want to have to pay the damages, then—just as we expect employers to hire and train their employees responsibly—we should do a better job choosing and training the lawmakers we elect.

If Congress wants to force lawmakers to personally pay any harassment settlements, lawmakers could be required to repay the Treasury for any damages and settlements that are funded by taxpayer dollars. In fact, such a policy could be an additional deterrent to discrimination and harassment while making the public (not the victim) the debt collector against the offending lawmaker. Most importantly, this reform would still ensure that the victims receive the justice they deserve.

Les Alderman is a founding member of the Washington, D.C., law firm of Alderman, Devorsetz & Hora PLLC.